Governor Greg Gianforte (R) has certainly ostracized a great many legislators, voters, and his supporters by not immediately repealing the ineffectual mask mandate unconstitutionally implemented by his predecessor, Governor Steve Bullock (D). But it is the aim of the Big Sky Policy Institute to provide impartial and factual policy evaluation despite party affiliation or political pragmatism.
Although we are pleased that Governor Gianforte has stated that the mask mandate will be “repealed in weeks, not months,” the governor punted his decision to reverse the emergency order to the legislature, which does not currently have a 51-vote conservative majority. Latest figures show that Llew Jones (“R”-Conrad) and his progressive Republican caucus appear to command the majority of the legislature when combined with the Democrats, which he has in times past regularly sided with.
By and large, the Solutions Caucus – led by Jones – are wearing masks alongside their Democrat counterparts in the Montana legislature while 40+ conservative Republicans remain with their faces uncovered. Numerous Solutions Caucus members have sided with Democrats in this debate, desiring a virtual session, masks, or social distancing.
In short, it is highly questionable if there are the votes necessary in the Montana legislature to provide a business liability bill to protect businesses and churches in the event someone contracts the mild respiratory virus on their property. And if there are not the votes possible to provide such a bill, then it is unknown how Gianforte can keep his promise to lift the mandate in “weeks, not months.”
THE POLICY PERSPECTIVE
Policy-wise, does it make sense for Governor Gianforte to wait on the Montana legislature to pass a business liability bill in order to remove Bullock’s unconstitutional mask mandate or forced lockdowns?
Gianforte’s decision to continue the mask mandate until the legislature acts would only make sense if liability over COVID-19 contraction indeed existed, or if there was a problematic or consistent pattern of using civil prosecution to punish mask violators.
However, if there is not a legitimate threat to small businesses because they respect the individual’s choice to wear a mask (or not), then it would seem that Gianforte’s decision to punt to the legislature is a pragmatic political move designed to shield him behind the status quo rather than to protect our rights and economic well-being.
THE REALITY REGARDING COVID BUSINESS LIABILITY
The statistics on this matter tell a story. Currently, 38 county sheriffs have signed onto a letter first published earlier in July, stating that they will not enforce Governor Bullock’s mask mandate. Out of 56 counties across the state, this accounts for 68% of the Montana counties that have already pledged not to enforce the mandate. However, only 6 counties have attempted prosecuting businesses that allow their customers to violate the unconstitutional mask or distancing orders. Out of 56 counties, this means that businesses in at least 88% of the counties in Montana have businesses that run afoul of the order.
However, statistics can be misleading. Although 6 counties have seen some kind of prosecution against businesses (largely unsuccessful), it’s not an exaggeration to say there are businesses and churches in every Montana county – even where prosecutions have been attempted – who regularly and defiantly break Bullock’s orders.
Surely then, there should be ample empirical evidence of the tort liability of businesses and churches who facilitate the spread of COVID-19 by not requiring masks or social distancing. The fear that releasing the mask mandate would make businesses vulnerable to tort liability is irrational, considering most businesses are already violating the mask mandate and not a single one has been sued for spreading COVID-19.
However, the number of lawsuits successfully brought against any business, church, club, establishment, or individual for spreading COVID-19 in Montana is zero. In short, it has never happened. The only legal harassment businesses have received in Montana for not wearing or demanding masks has been from the Montana Department of Health and Human Services and local health boards.
NATIONWIDE SURVEY OF BUSINESS LIABILITY IS SIMILAR TO MONTANA
With 328.2 million people in the United States, the number of lawsuits filed against businesses for spreading COVID-19 is limited to the hundreds, not thousands or tens of thousands. Examples include a wedding venue in Maine, large meat-packing plants like Tyson Foods, large corporations like Wal-Mart and Carnival Cruise Lines.
More than 6 thousand complaints have been filed against businesses for not enforcing mask and distancing standards, but only 270 lawsuits have been filed among the 50 states. None of those lawsuits have led to significant financial rewards and almost all of them are against nursing homes or care facilities – not businesses engaging in public commerce.
The reason for this lack of lawsuits against businesses is fairly simple; testing is untrustworthy, contact-tracing is sparse and proving where you got COVID-19 is next to impossible. Businesses are naturally immune from liability because of the inability to pinpoint where or from whom someone obtained the virus to begin with.
TOWARDS A BETTER POLICY
Governor Gianforte should immediately repeal the mask and distancing mandates issued by Governor Bullock, which would in turn put pressure on the legislature to pass a business liability bill in the event they prioritize those protections. Removing the mandates first will put progressive Republicans and Democrats who are convinced the virus is more than a paper tiger to act to protect businesses who might be sued for spreading the virus.
Instead, Gianforte should issue common-sense health guidelines asking the vulnerable, immune-compromised, and ill to stay away from public businesses and places, instead of requiring businesses to treat the entire public as though they were vulnerable, immune-compromised, and ill. The legislature should then be pressured to pass a business liability law with the new-found pressure of urgency.
Ultimately, what gives liability to Montana businesses in regard to ambulance-chasing attorneys and opportunistic bad neighbors is if COVID-19 was spread inside a business that could not conscientiously enforce Bullock’s mandate while the mandate remains in force. Ironically, only if the mandate remains in place will businesses be vulnerable to lawsuits for COVID-19 spread.
There appears no realistic threat thus far to Montana businesses regarding COVID-19 spread. Businesses have not been harassed legally for failure to require masks, except by Montana DPHHS and local health boards. Nationally, no lawsuits against storefront businesses or churches have led to large financial awards. The fear of such lawsuits against businesses seems to be a bugbear and an irrational one. Gianforte’s punt to the legislature will likely lead to no action on masks anytime soon, and furthermore, will probably delay action on business liability rather than hasten it.